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fitted out in violation of its neutrality. At that time the United States had no treaty with Great Britain similar to those with France, the Netherlands, and Prussia, but in a note to the British minister of September 5, 1793, Mr. Jefferson said that it was the opinion of the President that the United States should observe toward his nation the same rule, and even “ extend it to the captures made on the high seas and brought into our ports, if done by vessels which had been armed within them." Continuing, Mr. Jefferson, referring to three vessels which, after having been captured near the coast, were brought into the port of Philadelphia, where they then lay, said:

“Having, for particular reasons, forborne to use all the means in our power for the restitution of the three vessels mentioned in my letter of August 7th, the President thought it incumbent on the United States to make compensation for them; and though nothing was said in that letter of other vessels taken under like circumstances, and brought in after the 5th of June, and before the date of that letter, yet, where the same forbearance had taken place, it was, and is his opinion, that compensation would be equally due. As to prizes made under the same circumstances, and brought in after the date of that letter, the President determined, that all the means in our power should be used for their restitution. If these fail, as we should not be bound by our treaties to make compensation to the other powers, in the analogous case, he did not mean to give an opinion, that it ought to be done to Great Britain. But still, if any cases shall arise subsequent to that date, the circumstances of which shall place them on similar ground with those before it, the President would think compensation equally incumbent on the United States." a

By this note the obligation of the United States to use “all the means in its power" was confined to the exercise of those means within its own jurisdiction, and such was the construction given to the note by the board of commissioners under Article VII. of the Jay treaty. By the neutrality act of 1794 the courts of the United States were expressly invested with power to restore property brought within the jurisdiction under the circumstances which Mr. Jefferson described.c

During the first administration of President Monroe a correspondence took place between the United States and Portugal in regard to

a Mr. Jefferson, Sec. of State, to British min., Sept. 5, 1793, 5 MS. Dom. Let. 218.

Moore, Int. Arbitrations, I. 299 et seq. C" The doctrine heretofore asserted in this court is that whenever a capture is made by any belligerent in violation of our neutrality, if the prize come voluntarily within our jurisdiction, it shall be restored to the original owners. This is done upon the footing of the general law of nations; and the doctrine is fully recognized by the act of Congress of 1794." (La Amistad de Rues, 5 Wheat. 385, 389, S. P., Arrogante Barcelones, 7 Wheat. 496.)

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depredations on Portuguese commerce by privateers said to have been fitted out in the United States, and to have been commanded by American captains and manned by American crews.a

In this relation Mr. John Quincy Adams, who was then Secretary of State, declared:

“ The Government of the United States having used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruize against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, can not consider itself bound to indemnify individual foreigners for losses by captures, over which the United States have neither control nor jurisdiction. For such events no nation can in principle nor does in practice hold itself responsible. A decisive reason for this, if there were not other, is the inability to provide a tribunal before which the

a facts can be proved.

“ The documents to which you refer must of course be ex parte statements, which in Portugal or in Brazil as well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners should it also be brought within our jurisdiction, and found upon judicial inquiry to have been taken in the manner represented by your letter. By the universal laws of nations the obligations of the American Government extend no further."

By the treaty of Washington of 1871 the neutral is required to use “ due diligence" to prevent violations of neutrality within its jurisdiction by one belligerent to the detriment of the other. The tribunal of arbitration held that “ due diligence" must be exercised " in exact proportion to the risks" to which either belligerent might be exposed by the neutral's failure to fulfill its obligations in a word, that “due diligence” was a question of circumstances. And it was only in cases in which the tribunal found that there had been an absence of such diligence-an absence of due diligence within the neutral jurisdiction—that Great Britain was held liable to make compensation for the consequent injuries.

a In a note to Mr. Clay of March 9, 1850, the Conde de Tojal, discussing the (ase of the General Armstrong, said that during the war between the United States and Great Britain of 1812 the American privateer Gram pus on July 17, 1814, captured the British ship Doris near the island of Flores, in Portuguese jurisdiction; and that another American privateer, the Warrior, on March 12, 1815, captured the British vessels Nicholson and Dundee near Fort San Antonio, also within Portuguese jurisdiction; and that in none of the cases did the British Government exact any indemnity.

o Mr. Adams to the Chevalier ('orrea de Serra, March 14, 1818, H. Ex. Doc. 53, 32 Cong. 1 sess. 160.

It may further be observed that in the discussions of neutral obligations no distinction appears to have been drawn between the protection due to merchant vessels and that due to men-of-war in neutral waters against belligerent attack. In either case the subject has been approached from the simple point of view of the duty of the neutral to enforce the law within its territory.


$ 1336.

“ The policy of the United States is to maintain neutral immunities for the following reasons:-(1) The probabilities of war are far less with us than with the great European states. From the nature of things, points of friction between the United States and foreign nations are comparatively few. We have an ocean between us and the great armed camps of the Old World; and, while there are innumerable questions as to which one European state may come into collision with another, the only points as to which we would be likely to come into collision with a European state are those concerned in the maintenance of neutral rights. It was to maintain such rights that we went to war in 1812; and, except during the abnormal and exceptional spasm of the late civil war, our national life has heretofore been the life of a neutral and a vindicator of neutral rights. And neutrality, when our system took shape, was arduous.

(2) Although the richest country in the world, our traditions and temper are averse to large naval and military establishments. (3) The idea of pacific settlement of disputed international questions is one of growing power among us; the horror of war has not been diminished by the experience of the civil war; there is no country in the world where love of order is so great, and in which public peace is kept by an army and navy so small; it would be hard to convince the people of the United States that the immense and exhausting armaments of the great European states are not in part caused by the assigning of undue power to belligerents, and that one of the best ways of inducing a gradual lessening of these armaments would be the reduction of these powers.

(4) It is impossible to overcome the feeling that the sea, like the air, should be free, and that no power, no matter how great its resources, should be permitted to dominate it, so as to enable it, in case of war, to ransack all ships which may

be met for the discovery of an enemy's goods.

(5) It is not



right to offer such a premium to preponderance of naval strength as is offered by the theory of belligerent rights as maintained in Great Britain."

Wharton, Com. Am. Law, $ 242.
The last reason above stated refers to the rule, abandoned by Great

Britain at the time of the Crimean war, of seizing enemies' property
in neutral ships.

“With respect to the general principle which disallows to neutral nations, in time of war, a trade not allowed to them in time of peace, it may be observed:

“ First. That the principle is of modern date; that it is maintained, as is believed, by no other nation but Great Britain, and that it was assumed by her under the auspices of a maritime ascendency, which rendered such a principle subservient to her particular interest. The history of her regulations on this subject shows that they have been constantly modified under the influence of that consideration. The course of these modifications will be seen in an appendix to the fourth volume of Robinson's Admiralty Reports.

“ Secondly. That the prinicple is manifestly contrary to the general interest of commercial nations, as well as to the law of nations, settled by the most approved authorities, which recognizes no restraints on the trade of nations not at war, with nations at war, other than that it shall be impartial between the latter; that it shall not extend to certain military articles, nor to the transportation of persons in military service, nor to places actually blockaded or besieged.

“ Thirdly. That the principle is the more contrary to reason and to right, inasmuch as the admission of neutrals into a colonial trade shut against them in times of peace, may, and often does, result from considerations which open to neutrals direct channels of trade with the parent state, shut to them in times of peace, the legality of which latter relaxation is not known to have been contested; and inasmuch as commerce may be, and frequently is, opened in time of war, between a colony and other countries, from considerations which are not incident to the war, and which would produce the same effect in a time of peace; such, for example, as a failure or diminution of the ordinary sources of necessary supplies, or new turns in the course of profitable interchanges.

Fourthly. That it is not only contrary to the principles and practice of other nations, but to the practice of Great Britain herself. It is well known to be her invariable practice in time of war, by relaxations in her navigation laws, to admit neutrals to trade in channels forbidden to them in times of peace, and particularly to open her colonial trade, both to neutral vessels and supplies, to which it is shut in times of peace; and that one at least of their objects in these relaxa

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tions is to give to her trade an immunity from capture, to which, in her own hands, it would be subjected by the war.

“ Fifthly. The practice, which has prevailed in the British dominions, sanctioned by orders of council and an act of Parliament (39 Geo. III. c. 98) authorizing for British subjects a direct trade with the enemy still further diminishes the force of her pretensions for depriving us of the colonial trade. Thus we see in Robinson's Admiralty Reports, passim, that during the last war a licensed commercial intercourse prevailed between Great Britain and her enemies, France, Spain, and Holland, because it comprehended articles necessary for her manufactures and agriculture, notwithstanding the effect it had in opening a vent to the surplus productions of the others. In this manner she assumes to suspend the war itself, as to particular objects of trade beneficial to herself, while she denies the right of the other belligerents to suspend their accustomed commercial restrictions in favor of neutrals. But the injustice and inconsistency of her attempt to press a strict rule on neutrals, is more forcibly displayed by the nature of the trade which is openly carried on between the colonies of Great Britain and Spain, in the West Indies. The mode of it is detailed in the inclosed copy of a letter from

wherein it will be seen that American vessels and cargoes, after being condemned in British courts, under pretense of illicit commerce, are sent on British account to the enemies of Great Britain, if not to the very port of the destination interrupted when they were American property. What respect can be claimed from others to a doctrine, not only of so recent an origin, and enforced with so little uniformity, but which is so conspicuously disregarded in practice by the nation itself, which stands alone in contending for it?

“Sixthly. It is particularly worthy of attention, that the Board of Commissioners, jointly constituted by the British and American Governments, under the seventh article of the treaty of 1794, by reversing condemnations of the British courts, founded on the British instructions of November, 1793, condemned the principle, that a trade forbidden to neutrals in time of peace could not be opened to them in time of war; on which precise principle these instructions were founded. And, as the reversal could be justified by no other authority than the law of nations, by which they were to be guided, the law of nations, according to that joint tribunal, condemns the principle here combatted. Whether the British commissioners concurred in these reversals, does not appear; but whether they did or not, the decision was equally binding, and affords a precedent which could not be disrespected by a like succeeding tribunal, and ought not to be without great weight with both nations, in like questions recurring between them.

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